Plaintiff,
who is currently housed at Telfair State Prison in Helena,
Georgia, filed a cause of action pursuant to 42 U.S.C. §
1983, as amended, to contest certain conditions of his
confinement while he was housed at Smith State Prison in
Glennville, Georgia. (Docs. 1, 13.) Defendants filed a Motion
to Dismiss, (doc. 41), to which Plaintiff filed a Response,
(doc. 45). Defendants filed a Reply. (Doc. 46.) Plaintiff
also filed a Motion for Appointment of Counsel and a Motion
for Default. (Docs. 55, 56.) The Court
DENIES Plaintiff's Motion for
Appointment of Counsel. For the reasons which follow, I
RECOMMEND the Court GRANT in
part and DENY in part
Defendants' Motion to Dismiss and DISMISS as
moot Plaintiff's Motion for Default. Should the
Court adopt these Recommendations, the Court should
DISMISS without prejudice Plaintiff's
claims relating to his placement in the Tier II program for
his failure to exhaust his administrative remedies.
Plaintiff's Eighth Amendment claims, including his claims
for injunctive relief, would remain pending.

BACKGROUND

In this
action, Plaintiff alleges that he is at severe risk of attack
from his fellow inmates because he disavowed his status as a
member of the “Goodfellas Gang.” (Docs. 1, 13.)
Plaintiff states that he arrived at Smith State Prison from
Georgia State Prison on August 4, 2014. (Doc. 13, p. 3.)
Prior to his arrival at Smith State Prison, Plaintiff
disavowed his membership in the Goodfellas gang and worked
with the administration at Georgia State Prison as an
informant (apparently against the Goodfellas gang).
(Id.) Upon his arrival at Smith State Prison, a
correctional officer explained to Plaintiff he would be
placed in the Tier II program because all Goodfellas members
were housed in that program. (Id. at pp. 3-4.) The
officer explained that, per Defendant Stanley Williams, the
Warden of Smith State Prison, Plaintiff would not be allowed
to be housed in another dorm. (Id. at p. 4.)
Plaintiff explained he severed all of his ties with the
Goodfellas in October 2013 and that he was not housed in the
Tier II program at Georgia State Prison. (Id.) The
officer responded that Defendant Williams and Defendant Eric
Smokes, the unit manager, assign the inmates' housing
locations and that Plaintiff's assignment was “out
of her hands.” (Id.)

Plaintiff
then spoke with Defendant Smokes. (Id. at p. 5.)
Plaintiff explained to Defendant Smokes that he was no longer
a member of the Goodfellas gang and that leaders of the gang,
Abdul Williams and Jonathan McClendon, had “put a
contract hit on [Plaintiff's] life.” (Id.)
Plaintiff was placed in a single man cell in the Tier II
program, and staff explained the policies for contesting Tier
II administrative segregation status. (Id. at pp. 5,
15-16.)

On
August 6, 2014, Plaintiff spoke with a
“multi-functional officer” and Defendant Williams
regarding his placement in Tier II. (Id. at p. 6.)
He asked Defendant Williams when he would receive his
administrative segregation hearing per the Prison's
Standard Operating Procedure. (Id.) Warden Williams
did not respond. (Id.) Plaintiff made several more
attempts in August 2014 to speak with Williams and Smokes
regarding this placement in Tier II but was unsuccessful.
(Id.) On September 10, 2014, Plaintiff spoke with
Defendant Williams and again raised his safety concerns with
being placed in Tier II. (Id. at pp. 6-7.) Defendant
Williams told Plaintiff that, as a member of the Goodfellas
gang, he would not get a hearing to contest his placement in
the Tier II program. (Id.)

The
Court directed service of Plaintiff's Complaint on
Defendants by Order dated December 31, 2015. (Doc. 19.)
Defendants then filed their Motion to Dismiss on August 16,
2016. (Doc. 41.)

DISCUSSION

In
their Motion, Defendants assert Plaintiff failed to exhaust
his available administrative remedies regarding his placement
in administrative segregation prior to the filing of his
Complaint. Defendants contend Plaintiff does not set forth a
viable Eighth Amendment claim against them. Additionally,
Defendants contend Plaintiff is not entitled to injunctive
relief and they are entitled to qualified immunity. (Doc.
41-1.)

In
response, Plaintiff contends he exhausted his administrative
remedies as to the assertions he made in his Complaint.
Plaintiff maintains he sets forth sufficient facts to support
his Eighth Amendment claim against Defendants. Moreover,
Plaintiff asserts he is entitled to injunctive relief and
Defendants are not immune from suit. (Doc. 45.)

As set
forth below, I agree that Plaintiff failed to exhaust his
administrative remedies as to his placement in administrative
segregation prior to the filing of his Complaint and this
portion of Defendants' Motion is due to be granted.
However, Plaintiff does set forth sufficient facts to sustain
his Eighth Amendment claims against Defendants, including his
claims for injunctive relief, and these portions of
Defendants' Motion are due to be denied.

I.
Whether Plaintiff Exhausted his Administrative
Remedies

A.
Standard of Review for Exhaustion

The
determination of whether an inmate exhausted his available
administrative remedies prior to filing a cause of action in
federal court is a matter of abatement and should be raised
in a motion to dismiss. Bryant v. Rich, 530 F.3d
1368, 1374 (11th Cir. 2008). “Because exhaustion of
administrative remedies is a matter in abatement and not
generally an adjudication on the merits, an exhaustion
defense . . . is not ordinarily the proper subject for a
summary judgment; instead, it should be raised in a motion to
dismiss, or be treated as such if raised in a motion for
summary judgment.” Id. at 1374-75 (internal
citation omitted). “Even though a failure-to-exhaust
defense is non-jurisdictional, it is like” a
jurisdictional defense because such a determination
“ordinarily does not deal with the merits” of a
particular cause of action. Id. at 1374 (internal
punctuation and citation omitted). Further, a judge
“may resolve factual questions” in instances
where exhaustion of administrative remedies is a defense
before the court. Id. In these instances, “it
is proper for a judge to consider facts outside of the
pleadings and to resolve factual disputes so long as the
factual disputes do not decide the merits and the parties
have sufficient opportunity to develop a record.”
Id. at 1376.

In
Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008),
the Eleventh Circuit Court of Appeals set forth a
“two-step process” that lower courts must employ
when examining the issue of exhaustion of administrative
remedies. First, the court is to take the plaintiff's
version of the facts regarding exhaustion as true.
Id. at 1082. If, even under the plaintiff's
version of the facts, the plaintiff has not exhausted, the
complaint must be dismissed. Id. However, if the
parties' conflicting facts leave a dispute as to whether
plaintiff has exhausted, the court need not accept all of
plaintiff's facts as true. Id. Rather,
“the court then proceeds to make specific findings in
order to resolve the disputed factual issues[.]”
Id. “Once the court makes findings on the
disputed issues of fact, it then decides whether under those
findings the prisoner has exhausted his available
administrative remedies.” Id. at 1083. The
Eleventh Circuit has held that a district court may consider
materials outside of the pleadings and resolve factual
disputes regarding exhaustion in conjunction with a Rule
12(b)(6) motion to dismiss so long as the factual disputes do
not decide the merits of the case. See Bryant, 530
F.3d at 1376-77.

B.
Legal Requirements for Exhaustion

Where
Congress explicitly mandates, prisoners seeking relief for
alleged constitutional violations must first exhaust inmate
grievance procedures before filing suit in federal court.
See Porter v. Nussle, 534 U.S. 516, 524 (2002).
Section 1997e(a) of Title 42 of the United States Code
states, “No action shall be brought with respect to
prison conditions under section 1983 of this title, or any
other Federal law . . . until such administrative remedies as
are available are exhausted.” In Porter, the
United States Supreme Court held that exhaustion of available
administrative remedies is mandatory. Porter, 534
U.S. at 523; see also O'Brien v. United States,
137 Fed.Appx. 295, 301-02 (11th Cir. 2005) (per curiam)
(finding lack of exhaustion where prisoner “prematurely
filed his civil complaint . . . and . . . ‘failed to
heed that clear statutory command' requiring that his
administrative remedies be exhausted before bringing
suit”). Additionally, the Supreme Court has “held
that the PLRA's [Prison Litigation Reform Act's] text
suggests no limits on an inmate's obligation to
exhaust-irrespective of any ‘special
circumstances.' And that mandatory language means a court
may not excuse a failure to exhaust, even to take such
circumstances into account.” Ross v. Blake,
578 U.S.,, 136 S.Ct. 1850, 1856 (2016).

The
Supreme Court has noted exhaustion must be
“proper.” Id. at 92. “Proper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly
structure on the course of its proceedings.”
Id. at 90-91. In other words, an institution's
requirements define what is considered exhaustion. Jones
v. Bock, 549 U.S. 199, 218 (2007).

Thus,
under the law, prisoners must do more than simply initiate
grievances; they must also appeal any denial of relief
through all levels of review that comprise the administrative
grievance process. Bryant v. Rich, 530 F.3d 1368,
1378 (11th Cir. 2008) (“To exhaust administrative
remedies in accordance with the PLRA, prisoners must
‘properly take each step within the administrative
process.'” (quoting Johnson v. Meadows,
418 F.3d 1152, 1157 (11th Cir. 2005))); Sewell v.
Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27,
2007) (finding that a plaintiff who is still awaiting a
response from the warden regarding his grievance is still in
the process of exhausting his administrative remedies).

Furthermore,
an inmate who files an untimely grievance or simply spurns
the administrative process until it is no longer available
fails to satisfy the exhaustion requirement of the PLRA.
Johnson, 418 F.3d at 1157-59; Higginbottom v.
Carter, 223 F.3d 1259, 1261 (11th Cir. 2000)
(inmate's belief that administrative procedures are
futile or needless does not excuse the exhaustion
requirement). Additionally, “[t]he only facts pertinent
to determining whether a prisoner has satisfied the
PLRA's exhaustion requirement are those that existed when
he filed his original complaint.” Smith v.
Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012) (per
curiam).

“However,
‘while [Section] 1997e(a) requires that a prisoner
provide as much relevant information as he reasonably can in
the administrative grievance process, it does not require
more.'” Id. (quoting Brown v.
Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000)).
Nevertheless, the purpose of Section 1997e(a) is not that
“fact-intensive litigation” result over whether
every fact relevant to the cause of action was included in
the grievance. Hooks v. Rich, CV605-65, 2006 WL
565909, at *5 (S.D. Ga. Mar. 7, 2006) (internal citation
omitted). “‘As long as the basic purposes of
exhaustion are fulfilled, there does not appear to be any
reason to require a prisoner plaintiff to present fully
developed legal and factual claims at the administrative
level.'” Id. (quoting Irvin v.
Zamora, 161 F.Supp.2d 1125, 1135 (S.D. Cal. 2001)).
Rather, Section 1997e(a) is intended to force inmates to give
state prison authorities a chance to correct constitutional
violations in their prisons before resorting to federal suit
and to prevent patently frivolous lawsuits. Id.

The
Georgia Department of Corrections' rules and regulations
concerning placement in administrative segregation can be
found at Standard Operating Procedure (“SOP”)
IIB09-0001 and/or SOP IIB09-0003.[1] (Doc. 41-2, p. 9; Doc. 13,
p. 17.) The Tier II program “is an offender management
process” and was established “to protect staff,
offenders, and the public from offenders[] who commit or lead
others to commit violent, disruptive, predatory, or riotous
actions, or who otherwise pose a serious threat to the safety
and security of the institutional operation.”
(Id.) The Tier II program is a “[l]ong [t]erm
[a]dministrative [s]egregation stratification plan that
manages the institutional conduct and programmatic need of
offenders assigned to the program.” (Id.) The
Classification Committee reviews all recommendations for
assignment to the Tier II program, and the Classification
Committee's recommendations are submitted directly to the
Warden or designee for approval. (Id. at p. 18.)
After assignment to the Tier II program, the Classification
Committee holds an administrative segregation hearing within
ninety-six (96) hours of the assignment. The Warden or
designee will review all Classification Committee
recommendations, and this process must be completed within
seven (7) business days. Upon the Warden's (or
designee's) approval of a recommendation for placement in
the Tier II program, the inmate will be served with a copy of
the action. (Id.) An inmate can appeal his
assignment to the Tier II program “by submitting
written objections . . . to the Director of Facilities
Operations of his/her [d]esignee within three (3) business
days from receipt of the notice.” (Id.) The
inmate “must include detailed information in his
appeal” and submit his appeal to his assigned
counselor. The review of the inmate's appeal shall be
completed within fourteen (14) business days of receipt.
(Id.)

After
an inmate has been in the Tier II program for ninety (90)
days, he will have a meeting with the Classification
Committee, which is a “culmination of the previous
informal . . . contacts that have been completed as part of
the routine case management practices[.]” (Id.
at p. 19.) The Classification Committee will review the
counselor's recommendation to determine whether the
inmate will transition from one phase to the next phase; be
retained in the current phase or reassigned to a previous
phase for ninety (90) days; assigned to segregation, the Tier
I program, or general population upon completion of the Tier
II program; or reassigned in the inmate's current phase
at another facility. (Id.) In making its
recommendation, the Classification Committee will give
specific reasons for its recommendation and will consider the
inmate's: length of time in the current phase; continued
facility risk; number, type, and frequency of disciplinary
reports; progress in the Tier II program; and demeanor with
staff in the Tier II living areas and during periodic
reviews. (Id.) Once the Warden or designee approves
the Classification Committee's recommendation, the inmate
will be served with a copy of the action. As with the initial
placement in the Tier II program, the inmate is to file an
appeal of the 90-day review with the Warden within three (3)
business days of receipt of the notice. The inmate must
include “detailed information appealing the
assignment.” (Id.) The Warden or designee has
seven (7) business days to complete a review. (Id.)

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.